Copyright Patent Trademark

SpicyIP Weekly Review (July 19 – 26)


Topical Highlight

Fear Won’t Take You Anywhere: Delhi HC Revisits Bolar Exception, Rules Apprehensions Cannot Deny Liberty under Section 107A

In this post, Praharsh discussed the recent Delhi High Court order vacating an ex-parte interim injunction, allowing the SMS Pharmaceuticals to export Merck’s patented anti-diabetic drug ‘Sitagliptin’ for R&D purposes. He first summarises the key findings of the order. He then analysed the order and argued that the court rightly denied the plaintiff’s excessively restrictive interpretation of Section 107A, and fostered certainty in the law by maintaining consistency with earlier decisions rendered with similar facts. He, however, highlighted the issue that this vacation of the ex-parte order came after 9 months of the injunction that too without any evidence of commercial sale by the defendant and sufficient disclaimers against the same. He concluded by contemplating whether the four-factor test to be considered for granting injunctions is actually followed in practice or not.

Thematic Highlight

Pesticide Patents: Not ‘Working’ Out?

In this post, Nikhil analyses the issue of working of pesticide patents in India in light of a recent study by the Crop Care Federation of India (‘CCFI’). He first highlights the major findings of the study such as the large scale non-working of pesticide patents until the very end of their protection period, and that patented pesticides are invariably imported from high-cost economies. He then highlights the impact of non-working of these patents including non-availability of advanced pesticides to farmers, the possibility of inefficiencies in taking the importation route, and the impact on foreign exchange outflow, thereby against the essence behind providing patent protections. He then discusses the possible remedies of compulsory licensing and revocation of patent that are available in case of non-working and then goes on to highlight the importance of disclosure of working requirements under Section 146 of the Patent Act for these remedies. Subsequently, he analyses the deficiencies with the disclosure requirements in India and concludes by suggesting possible reforms to improve the issue of non-worked patents.

Other Post

Do Ashok Kumar Orders Conform to Principles of Equity?

In this guest post, Nishtha analysed whether the relief of John Doe injunction orders has remained true to the underlying objectives behind the principles of equity, in light of a recent Delhi High Court order blocking websites on grounds of piracy. She first provides a background on John Doe orders and the jurisprudence surrounding the same. She then argues that the courts have been unnecessarily liberal in granting John Doe injunctions in light of some equity principles. She first notes that equity protects those harmed and can demonstrate the requirement of relief but courts have still granted John Doe injunctions even before any infringement threat could be demonstrated. She then highlights that while copyright and trademark act contemplate post infringement injunctions, John Does are an exception rooted in equity. Despite this, courts have used these orders excessively muzzling free speech, fair dealing rights and creative expressions, as highlighted in the instant case where websites were blocked without providing for any specified period for review. Finally, she notes that the court failed to look at merit of each of the defendants, and allowed plaintiff to determine the scope of injunction, thereby placing the plaintiff in an unreasonably high bargaining position against the defendant.

Decisions from Indian Courts

  • The Delhi High Court in Astrazeneca Ab v. Intas Pharmaceuticals Limited, in a division bench decision, dismissed the appeals against orders of single judge benches where an injunction application filed by the appellants restraining the respondents from dealing in products infringing their patented compound ‘Dapagliflozin’ was denied. [July 20, 2021]
  • The Delhi High Court in Merck Sharp and Dohme Corp. v. SMS Pharmaceuticals Limited, vacated an earlier ad interim injunction against the defendant’s dealing in the plaintiff’s patented drug Sitagliptin upon being informed that such dealings were being carried out with appropriate regulatory approvals and for research and development purposes which are exempt under Section 107A of the Patents Act. [July 20, 2021]
  • The Delhi High Court in Sony Pictures Networks India Pvt Ltd v. www.yallashootextra.com, granted an ad interim injunction restraining the defendant websites, their mirror links, and cable operators from using any cinematographic work in which the plaintiff has copyright, and directed the ISPs to block access to the concerned websites. [July 19, 2021]
  • The Madras High Court in Sun TV Network Limited v. IQuest Enterprises Private Limited, denied the plaintiff’s prayer to declare them to be the owner of satellite television rights of the Telugu feature film “PELLI KODUKU” and held the defendant to be the owner of such rights in light of an earlier assignment agreement. [July 14, 2021]
  • A Bangalore City Civil Court granted an ad-interim ex-parte injunction restraining Samsung from using the plaintiff’s registered ‘CONCIERGE’ mark.
  • Indiamart contended before the Bombay High Court that Just Dial had filed false and fabricated documents in relation to an application pertaining to an appeal in a copyright infringement case.

Other News

  • The department related parliamentary standing committee on commerce has released its report titled, ‘Review of the Intellectual Property Rights Regime in India’.
  • An article in the Business Insider discusses the use of YouTube’s copyright strike system for extortion purposes by using fake copyright strikes.
  • An article in The Quint discussed a Facebook scam where popular users received a fake copyright complaint and were asked to ‘repair’ their accounts in light of the same.
  • Senior delegates of Federation of Hotel & Restaurant Associations of India (FHRAI), India’s leading hospitality association, met with the Union Minister for Tourism, Culture and Development of North-Eastern Region, G. Kishan Reddy, and highlighted, inter alia, the challenges faced by the industry from Copyright societies.
  • General Motors is suing Ford for trademark infringement to protect its Cruise and Super-Cruise brands for driver-assist technology in light of Ford using the mark ‘Blue Cruise’ for its automated driving system.
  • Chinese battery giant CATL has sued the China Lithium Battery Technology (CALB) for patent infringement for a range of patents affecting CALB’s entire product line.
  • KEM hospital dean, Dr. Hemant Deshmukh, has been granted patent by the US Patent Office for a device to lose weight by controlling blood flow.
  • A team from Panjab University has been granted a patent for a device for early detection of finger or hand related joint disorders.

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